Winner v. Kuehn

• Citation: 97 Wis. 394,72 N.W. 227
• Parties: WINNER v. KUEHN.
• Decision Date: 28 September 1897
• Court: United States State Supreme Court of Wisconsin

97 Wis. 394

72 N.W. 227

WINNER

v.KUEHN.

Supreme Court of Wisconsin.

Sept. 28, 1897.

Appeal from circuit court, Milwaukee county; Charles V. Bardeen, Judge.

Action by John H. Winner against Julius Kuehn, as assignee of Detmer Fischbeck and another, impleaded. From an order sustaining an attachment issued in said action, and from a judgment therein in favor of plaintiff, said assignee appeals. Reversed in part.

This is an appeal from an order sustaining a writ of attachment upon the traverse of the affidavit by the defendant Kuehn, as assignee of Detmer and Victor Fischbeck. The assignee also made answer in abatement, to the effect that there was another action pending for the same cause. The facts were that in July, 1893, and for many years prior thereto, Detmer and Victor Fischbeck were co-partners in a large harness and saddlery business in the city of Milwaukee; Victor being the active partner and sole manager of the concern, Detmer, his father, having retired. In July, 1893, the bank at which the firm did business closed its doors, thereby seriously embarrassing the firm. The plaintiff, Winner, was a friend of the partners, and was their creditor at that time in the sum of about $12,000. He also loaned them another $1,000 on the 22d day of July, and the Fischbecks gave him a demand note for the whole debt on the 25th of July, 1893, in the sum of $13,091.48; it being agreed at the time that Winner should commence suit at once on the note, and that no defense should be made thereto, and that, at the expiration of 20 days, judgment should be entered. This action was begun on the 26th of July by Messrs. Sylvester & Scheiber, who were attorneys for the Fischbecks. The business was continued, after the bringing of the action, by Victor Fischbeck, as managing partner, in the same manner as before. Fischbeck seems to have formed the idea that it would be best to make a compromise with their creditors at a very low figure; and, if that was found to be impossible, his scheme was to have Winner sell the stock of goods upon execution, and buy them in at as low a figure as possible, and then form a partnership with Mrs. Fischbeck, who was also a creditor of the firm, to run the business. Winner testifies that he did not consent to this plan. Judgment was not entered upon Winner's note as soon as the 20 days were up; and he seems to have become distrustful, and, upon the 18th of August, consulted other attorneys, and commenced this suit by attachment, levying upon the entire stock of goods. On the 21st of August following, he directed Sylvester & Scheiber to discontinue the action, which they refused to do until paid their bill for services. On the 22d of August, the Fischbecks made a voluntary assignment to Kuehn for the benefit of their creditors. In February, 1894, Winner paid Sylvester & Scheiber's bill, and the first action was, in effect, discontinued. In May, 1894, the assignee was given leave, by order of the court, to defend this action as fully as the Fischbecks could have done; and thereafter the assignee served an answer, setting up the pendency of the former suit in abatement. The court found upon the trial that Victor Fischbeck, at and just before the making of the affidavit of attachment, and while the firm was insolvent, to his knowledge, withdrew partnership funds for his own private use, with intent to defraud the creditors of the firm, and upon this ground sustained the attachment. From the judgment, and from the order sustaining the attachment, the assignee appeals.Sylvester, Scheiber, Riley & Orth and Haring & Frost, for appellant.

Fiebing & Killilea and Winkler, Flanders, Smith, Bottum & Vilas, for respondent.

WINSLOW, J. (after stating the facts).

The important questions in this case are five in number: First. Should the action have been dismissed on account of the pendency of the former action? Second. Was the affidavit of attachment fatally defective? Third. Should the attachment have been vacated on the merits? Fourth. Does the fraudulent disposition of property by one partner only justify an attachment against the firm? And, fifth, can there be a personal judgment against the assignee?

1. The first action was practically discontinued in February, 1894, and the answer alleging its pendency was not made until three months later. The rule is stated...